Defamation

Section 499 of the IPC criminalizes any words spoken, written or any gesture (signs or representations) that is intended to cause harm to the goodwill or reputation of any person in the eyes of another right thinking member of the society.

Section 500 details the punishment for defamation, where such person can be imprisoned up to 2 years or fine or both.

Essentials

1. There must be a defamatory statement

2. The statement must be published

3. The statement must have lowered the reputation or goodwill of such person against whom it was intended, in the eyes of right thinking members of the society.

4. It must be shown that the person making the defamatory statement had the intention to cause harm or had knowledge that it would harm or was likely to harm the reputation of the person concerned.

Burden of proof

The burden of proof is on the person instituting the case and has to prove that such published work has defamed him in some manner. If there is the Proof of intention, knowledge or reasonable belief then it is sufficient to prove that the harm to reputation is being done.

Although intention is an integral ingredient for defamation a person can be held liable without intention in certain cases. If there is any reason to believe that the accused had knowledge that the publication was likely to cause harm is enough to sue the accused for defamation.

Exceptions

Sec 499 contains 10 exceptions. They declare that whenever a case falls in any one or more exceptions, there is no defamation.

Thus in the following cases there is defamation

1. Imputation of truth for the public good –Truth is only considered a defence if such statement was made in good faith and for the public good. Hence it is not a complete defence against a criminal defamation

2. Public conduct of public servants

3. Conduct of any person touching any public question

4. Publication of reports of proceedings of court

5. Merits of case decided in court

6. Merits of public performance

7. Censure passed in good faith by person having lawful authority over another

8. Accusation made in good faith by person to an authorised person

9. Imputation made in good faith by person for protection of his interest

10. Caution of public good.

Actus Reus

1. Amar Singh v. K.S. Badalia, (1965 CriLJ 693 )

The court held that one of the ingredients of the offence of defamation is that there should be making or publication of any imputation concerning any person. Such imputation may be words either spoken or written. The defamatory matter has to be published. In other words, it has to be communicated to a person other than the person defamed. Publication implies communication to at least one person other than the person defamed. In other words, communication must be to a third party, that is, to a party other than the person defamed

2. Challa Subbarayudi v . Darbha Ramakrishna Rao, (1967 SCC Online AP 137)

The Court held that “Publication is the communication of the words or doing the defamatory act in the presence of at least one other person than the person defamed. Communication to the plaintiff himself would not be enough because defamation is an injury to one's reputation and reputation is what other people think of man, and not his own opinion of himself. Publication of the defamatory act or statement therefore is an essential element for the constitution of defamation.”

Mens Rea

1. Kalpnath Rai v. State (AIR 1998 SC 201), The Hon’ble Supreme Court has laid down that unless the statute clearly excludes mens rea in the commission of offence, the same must be treated as essential ingredient of the criminal act to become punishable. (In the facts of the case, it was held : that a company cannot be said to have requisite mens rea to harbor a terrorist if any terrorist was allowed to occupy the room in its hotel)

2. Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431 : (1997 Cri LJ 4091), The Court held that “the publication with intention of harming the reputation of the person concerned to make others to know the imputation is the most important ingredient to make out an offence under S. 500 IPC” and further that “there will be no publication, if the complainant alone is informed of the defamatory words”, and also that “a communication to the defamed himself will not be a publication.” Hence: in absence of allegations or evidence showing that the defamatory material was published to an individual other than the person defamed, a case for criminal action for the offence of defamation cannot be maintained